The case of Mukhtar Dzhakishev - The life of the political prisoner is in danger

1. Introduction

The conviction of the former president of the ‘Kazatomprom’ company, Mukhtar Dzhakishev in 2009 was the result of a shake-up in the spheres of influence between the political elites in Kazakhstan. The persecution of Dzhakishev began immediately after charges were brought against opposition politician Mukhtar Ablyazov, who was Dzhakishev’s close friend. One of the allegations made by the authorities against Dzhakishev was that he had been lobbying for Ablyazov’s interests.

Materials of the case file are classified, and it has not been publically stated on what evidence Dzhakishev was convicted. The incriminatory testimonies given by witnesses were biased in favour of the investigators. Authorities restricted the access of counsels to the defendant and to the case file. Dzhakishev could have died during the proceedings, as the judge and investigators ignored the critical state of his health, and refused to provide him with adequate medical care.

In February 2014, Mukhtar Dzhakishev was beaten by an escort during his transfer to another colony, located in the remote province of Karaganda, 1000 km from his family home in Almaty. Mukhtar Dzhakishev’s daughter, Aygerim is convinced that with the transfer to a more severe regime colony, authorities wanted to ‘break the spirit’ of her father. Due to his extremely high blood pressure, Dzhakishev is under a constant threat of a stroke and ischemia.

On 26 March, 2014, the UN Human Rights Committee called on the Kazakh authorities to transfer Dzhakishev to a colony with better conditions of detention and provide him with adequate medical care. However, until now, Dzhakishev has been detained in the colony with harsher conditions of detention, and his family is not certain whether he receives quality medical care in prison.

Aygerim Dzhakisheva last saw her father in September 2014. According to the information obtained by her, there have been no new manifestations of aggression towards Dzhakishev in the colony. However, he continues to remain in the medical wing of the colony. Dzhakishev’s family fears for his life. "While he was in prison, he was at the mercy of the authorities. They were cruel to him and denied him medical treatment – they could do so again",- Aygerim Dzhakisheva said of the fate of his father.

2. The key dates and facts in the persecution of Mukhtar Dzhakishev

During the period of 1998-2009, Mukhtar Dzhakishev held the position of  President of the National Atomic Company ‘Kazatomprom’, apart from the period from October 2001 to February 2002, when he was Vice-Minister of Energy and Mineral Resources of Kazakhstan. According to Galym Nazarov, a former director of the Treasury of ‘Kazatomprom’, Dzhakishev headed ‘Kazatomprom’, when the company was on the verge of bankruptcy, and managed to turn it into a world leader in uranium production.

2.1 The arrest and conviction of Dzhakishev

On 1 April, 2009, an MP from the pro-presidential party, Tatiana Kvyatkovskaya, urged the authorities to conduct an investigation regarding Mukhtar Dzhakishev, having accused him of ‘selling for a song’ uranium deposits. Kvyatkovskaya stated that these actions were allegedly linked to lobbying for opposition politician Mukhtar Ablyazov. According to a representative of the National Security Committee (NSC) Kenzhebulat Beknazarov, MP Kvyatkovskaya had information about Dzhakishev’s illegal activities as she had been granted access to state secrets, "And there is nothing shameful in the fact that someone is working for the NSC!". Based on the statement of MP Kvyatkovskaya, General Prosecutor’s Office of Kazakhstan began the inspection of the ‘Kazatomprom’ company. It is noteworthy that only two weeks before, on 10 March, 2009, the General Prosecutor’s Office accused Mukhtar Ablyazov of corruption.

On 21 May, 2009, on the motion of the General Prosecutor’s Office,  Mukhtar Dzakishev was dismissed from his post as President of ‘Kazatomprom’. On that day, information was disseminated that he had been arrested and was beingheld in the NSC detention facility.

In the case of ‘Kazatomprom’ was carried out with two defendants - Mukhtar Dzhakishev and his bodyguard, Talgat Kystaubayev.

Several criminal cases were instituted against Mukhtar Dzhakishev under three articles of the Criminal Code of the Republic of Kazakhstan (Criminal Code), namely:

  • Article 177, section 3, pp. ‘a’ and ‘b’ of the Criminal Code of the Republic of Kazakhstan - large scale fraud  commited by an organised group;
  • Article 176, section 3, pp. ‘a’ and ‘b’ of the Criminal Code of the Republic of Kazakhstan - misappropriation of entrusted property on a large scale committed by an organised group;
  • Article 311, section 5 of the Criminal Code of the Republic of Kazakhstan - accepting a bribe in a large amount.

On 24 May, 2009, Dzhakishev’s bodyguard, Talgat Kystaubayev, was arrested. He faced charges under two articles:

  • Article 176 of the Criminal Code of the Republic of Kazakhstan - misappropriation of entrusted property;
  • Article 307 of the Criminal Code of the Republic of Kazakhstan - abuse of power.

On 23 May, 2009, information was published about the detention of three vice-presidents of ‘Kazatomprom’, namely: Dmitriy Parfenov, Askar Kasabekov and Malkhaz Tsotsoria. On 1 June, 2009, the NSC stated that these people were connected to the case as witnesses and were under state protection. They were kept in a safe house and had limited contact with their families. Reporters noted that their accusatory testimonies resembled arote-learned text. At the same time, the testimonies did not correspond with regard to some points. And so, Malkhaz Tsotsoria testified that Dzhakishev had allegedly taken control of approx. 20% of the uranium deposits, while Dmitriy Parfenov and Askar Kasambekov cited the figure of 60%. The witnesses were biased in favour of the investigators as the NSC had guaranteed them exemption from criminal liability in exchange for ‘truthful testimonies’ and cooperation with the investigators.

On 12 March, 2010, Mukhtar Dzhakishev was sentenced to 14 years’ imprisonment in a maximum security prison, having been convicted of embezzlement of entrusted property (Article 176, section 3, pp. ‘a’, ‘b’ of the Criminal Code of the Republic of Kazakhstan) and accepting a bribe (Article 311, section 5 of the Criminal Code of the Republic of Kazakhstan). The appellate courts upheld the conviction.

His bodyguard Talgat Kystaubaev was sentenced to 5 years' imprisonment in a penal colony, having been convicted of misappropriation of entrusted property (Article 176 of the Criminal Code) and abuse of office (Art. 307 of the Criminal Code).

On 21 June, 2012, a ruling was handed down against Mukhtar Dzhakishev in another criminal case. Dzhakishev refused to take part in the court proceedings in protest against conducting the trial behind closed doors.  The court deemed Dzhakishev guilty of fraud (Article 177 of the Criminal Code of the Republic of Kazakhstan) and misappropriation of entrusted property (Article 176 of the Criminal Code of the Republic of Kazakhstan) and sentenced him to 10 years’ imprisonment. With two concurrent sentences, the 10 years were included in the previous sentencing of 14 years. Thus, as a result of two criminal convictions, Dzhakishev was sentenced to 14 years’ imprisonment.

2.2. Mistreatment during his transfer to another colony

On 12 February, 2014, the information was published about the transfer of Mukhtar Dzhakishev from the LA 155/12 colony in the village of Zarechniy near Almaty to the AK 159/6 colony in the populated area of Dolinka in remote Karaganda Province. In 1930-1959, one of the largest of Stalin's GULAGs (GULAG - General Directorate of Labour Camps) was located there. The transfer to Dolinka was carried out under the pretext of renovation of the colony in Zarechniy. Human rights activists had previously stated that prisoners had been repeatedly tortured in this colony.

Mukhtar Dzhakishev was beaten about the kidneys during the transfer. He reported this to his wife during their meeting on 18 February, 2014. The colony doctors diagnosed Dzhakishev with ‘nephroptosis (floating) of the right kidney’. According to Aygerim Dzhakisheva, her father has never suffered from kidney disease. Following their visit to the colony to see Mukhtar Dzhakishev on 4 April, 2014, human rights activist Bakhyt Tumenova and Zhemis Turmagambetova stated as follows: "No complaints about mistreatment by the workers have been filed, the rights have been fully observed. When he was being transferred, as he claims, someone hit him from behind in the back”. Tumenova clarified: "On his arrival from in Karaganda from Almaty under escort, he stumbled as he was kicked in the back by one of the soldiers. However, he could not see who had kicked him".

Chairman of the Committee of the correctional system (CCES) of the MIA, Baurzhan Berdalin stated that there were no grounds for opening a criminal case, as in the pre-investigation stage, the illegal actions in relation to Dzhakishev had not been confirmed: "No injuries have been revealed”. Aygerim Dzhakisheva is convinced that her father would not have made unjustifiable statements about the battery to his family, and believes that the CCES investigation was not carried out properly.

Aygerim Dzhakisheva reported that there were terrible conditions at the colony: no hot water, no heating in the toilets while the air temperature in winter reaches -40°C. On 26 March, 2014, the UN Committee on Human Rights addressed the government of Kazakhstan with an appeal to consider the possibility of transferring Dzhakishev to a colony, which "provides conditions more suitable to his health condition" in order to ‘to avoid irreparable harm’. In the Dolynka colony, Dzakishev has already lost consciousness due to high blood pressure. The colony doctors administer injections to Dzhakishev, in order to prevent his blood pressure from rising to a critical level.

3. The case against Mukhtar Dzhakishev bears signs of a political conspiracy

Kazakh human rights defenders and civil society activists included Dzhakishev in the list of Kazakh convicts who, according to the criteria adopted by Amnesty International and the Parliamentary Assembly of the Council of Europe, can be attributed to the group of political prisoners.

3.1 Close relationship with Ablyazov and the conflict between alites as motives behind the criminal prosecution

According to Aygerim Dzhakisheva, her father made attempts to stay away from political struggle, opting to work in the energy industry. However, there is every reason to believe that Dzakishev fell victim due to a struggle between political elites in Kazakhstan which became more intense at that time.

Mukhtar Dzhakishev studied at university together with Mukhtar Ablyazov, who later became a prominent opposition politician. According to Ablyazov, they were close friends and "dreamed of making Kazakhstan beautiful, prosperous and free". In 2002, Mukhtar Ablyazov was sentenced to 6 years' imprisonment, having been convicted of abuse of office and conducting illegal business. The international community has recognised the verdict as a politically motivated one. Dzakishev visited Ablyazov in jail, despite the fact that this could have invoked disapproval on the part of the authorities.

On 13 May, 2003, President Nazarbayev signed a decree pardoning Ablyazov. One of the conditions of his release was his renouncement of political activity. Mukhtar Dzhakishev has become Ablyazov’s guarantee of fulfillment of the conditions of release.

However, in 2009, the then head of BTA Bank, Mukhtar Ablyazov once again fell from the grace of President Nazarbayev as he continued to carry out opposition activities and to finance the opposition. After Ablyazov left Kazakhstan, Dzhakishev personally met with him in London on behalf of Nazarbayev, persuading him to return to their homeland. According to Ablyazov, Nazarbayev offered to close criminal cases in exchange for an apology and the transfer of shares of BTA Bank to the president's family. Ablyazov noted that Dzhakishev’s arrest and subsequent trial were a consequence of the fact that Dzhakishev was not able to ensure Ablyazov’s withdrawal from politics after 2003 and persuade him to return to Kazakhstan in 2009. The friendship with Ablyazov as a possible reason for the persecution of Dzhakishev was mentioned by political analyst Rasul Zhumaly and politician Vladimir Kozlov, who is also currently one of Kazakhstan’s political prisoners.

Yet another reason for the persecution of Mukhtar Dzhakishev could have been redistribution of spheres of influence in the uranium industry in Kazakhstan. According to Dzhakishev, he opposed the transformation of the Kazakh uranium industry into a raw material appendage of the Russian nuclear complex. Whilst under arrest, he expressed his concern over the increasing Russian influence in ‘Kazatomprom’ and suspension of the signing of agreements with China and Japan, "Who benefits from this? It is advantageous to the Russians, of course. While I'm imprisoned here, all that they do, they do to our detriment”.

Opposition politician Vladimir Kozlov drew attention to the fact that after Dzhakishev’s dismissal,  ‘Kazatomprom’ was headed by a person from Nazarbayev’s circles, Vladimir Shkolnik. On 29 May, 2014, Vladimir Shkolnik and the head of the Russian state company ‘Rosatom’, Sergey Kiriyenko, signed a contract for the construction of a nuclear power plant on the territory of Kazakhstan. The project has been criticised by environmentalists and experts who stressed the environmental danger of such a construction project as well as the lack of economic benefit to Kazakhstan. In addition, since Dzhakishev’s arrest, his plan to making a transition from the exportation of uranium to the production of nuclear fuel still remains unrealised.

3.2 Authorities have classified the case and deprived Dzhakishev of the right to a defence

The case of Mukhtar Dzhakishev was ‘classified’. During the investigation and trial, the counsels’ access to the defendant and to the case file was limited under the pretext of their lack of authority to work with sensitive information. The reason for the classification of the case was the information regarding the uranium assets. However, Kazakh journalists noted that Dzhakishev had been accused of illegally selling uranium assets in the period prior to 2008 - at a time when the government of Kazakhstan officially provided information on uranium resources to the International Atomic Energy Agency and other institutions. Also, the counsels claimed that the charges regarding the ‘misappropriation of entrusted property’ and ‘accepting bribes’ do not contain sensitive data. However, the General Prosecutor's Office refused to declassify the case.

During the investigation, the defence constantly faced obstacles:

  • After the arrest, Mukhtar Dzakishev was remanded in the NSC detention facility in Astana. Under the pretext of protecting state secrets, no relatives or counsels, chosen by him (Daniar Kanafin and Nurlan Beysekeyev), had access to Dzhakishev for 80 days. Thus, there was a violation of Kazakhstan’s legislation, which guarantees the rights of suspects and accused persons to visits from relatives and counsels from the moment of their detention.
  • Investigative actions were carried out with the participation of public attorney Igor Spiridonov, who enjoyed the confidence of Dzhakishev and did not take the initiative to protect his interests. The authorities violated Article 72 of the Code of Criminal Procedure of the Republic of Kazakhstan, according to which, the counsel shall be appointed at the request and with the consent of the suspect.
  • One of Dzhakishev’s counsels, Nurlan Beysekeyev, had permission to work with state secrets, but still, for over two months he was not allowed to work with Dzhakishev. In June 2009, the head of the NSC investigative group, Vladimir Petrovskiy addressed the Bar Association with a request to revoke the licences of Dzhakishev’s counsels, Daniar Kanafin and Nurlan Beysekeyev due to their critical statements about their limited access to the case file. However, the Bar Association refused to revoke the counsels’ licences.
  • Counsel Nurlan Beysekeyev stated that the investigators exerted pressure on him and prevented his professional advocacy activities. The NSC officials violated the privacy of his meetings with Dzhakishev and made attempts to search the counsel, which violated Article 17 of the Law ‘On Advocacy’. On 21 September, 2009, investigator Petrovskiy announced to Counsel Nurlan Beysekeyev that Dzhakishev had been appointed a new public attorney; however, the investigator refused to give the attorney’s name. Still, after filing several complaints with the prosecutor’s office, Nurland Beysekeyev was given permission to continue to work with Dzhakishev.

In December 2009, the case of Dzhakishev was referred to the Sary-Arka District Court of Astana. The trial was held with gross violations of international fair trial standards:

The right to a defence has been grossly violated not only with regard to Mukhtar Dzhakishev, but also his bodyguard Talgat Kystaubayev:

4. Dzhakishev's life was threatened as he was denied medical assistance

Before his arrest, Mukhtar Dzhakishev was examined by German doctors who diagnosed him with secondary hypertension (stage III) with episodes of transient ischemic attack; a condition which presents a high risk of a stroke. With such a diagnosis, increased blood pressure may be accompanied by impaired vision, hearing and speech.

The prison authorities and the court did not provide Dzhakishev with the necessary medical care and persistently ignored his request for admission to hospital, and as a result, he may not have lived to see the end of the court trial. In the detention facility, Dzhakishev’s hypertension reached a critical stage. Over the course of the criminal proceedings, Dzakishev suffered from 14 episodes of hypertensive crisis.

  • In September and October 2009, Dzhakishev’s health condition seriously deteriorated. In such a state, he could not study the case file and requested several times that the investigator and the prosecutor grant him the right to hospitalisation; still, he was denied this opportunity.
  • Only after Dzhakishev fainted from hypertensive crisis on 17 October, 2009, was he hospitalised in the Republican Clinical Hospital in Astana. The doctors managed to reduce his blood pressure, but they did not have time to administer treatment, as on 22 October, 2009, Dzhakishev was transferred back to the detention facility. On 26 October, 2009, his blood pressure rose again, reaching over 200 mm Hg.
  • On 23 December, 2009, during the trial, Mukhtar Dzhakishev’s health state deteriorated again. The defendant fainted in the courtroom. Judge Nurzhan Zholdasbekov continued with the hearing despite the fact that Dzhakishev was having convulsions. The physicians provided emergency assistance to the defendant, but the court soon decided that he did not require hospitalisation.
  • The judge refused to postpone the proceedings, despite the fact that  at times, during the court hearing, Dzhakishev had to lie on the defendants’ bench and could not participate in the proceedings. On 27 January, 2010, Dzhakishev again had a hypertensive episode in the courtroom. The doctor from the NSC clinic, Galim Kaliyev stated that the defendant purposefully caused his blood pressure rise to the mark of 210 mm Hg “through the power of his will and by exercising muscle tension”.

On 19 March, 2010, Swiss cardiologists Leo Finzi and Francesco Conti, who had been mandated by the World Organization Against Torture to monitor the situation with Mukhtar Dzhakishev’s health condition, arrived in Kazakhstan. However, the judge did not agree to meet the Swiss experts. Also, they were not granted permission to visit Dzhakishev in the detention facility and they were denied the opportunity to have a meeting in the Foreign Ministry. Doctor Leo Finzi could not understand the attitude of the Kazakh authorities: "In Europe it is normal practice, if the doctors are sent from an organisation against torture of prisoners, they are granted access to them".

5. Conclusions and recommendations

Mukhtar Dzhakishev suffered as he had lost favour with President Nursultan Nazarbayev. The recent history of Kazakhstan confirms that all members of the political and financial elite, which at one time had huge authority or were in opposition to the president, have been eliminated. They were either sent to prison (Galymzhan Zhakiyanov, Vladimir Kozlov) or became political emigrants (Akezhan Kazhegeldin, Mukhtar Ablyazov, Viktor Khrapunov) or died under mysterious circumstances (Zamanbek Nurkadilov, Altynbek Sarsenbayev).

The case of Dzhakishev shows what can happen to a successful entrepreneur in Kazakhstan, if he loses political favour with the ruling elite. Through this example, foreign investors can identify the potential risks of cooperating with the Kazakh authorities.

Freedom House and Human Rights Watch pointed to the possible political motivation of the judgement in the case of Mukhtar Dzhakishev. The UN Committee on Human Rights is in the process of considering the complaint filed by Dzhakishev’s counsels. Conducting the hearings behind closed doors allowed the concealment from the public gross violations of international obligations assumed by Kazakhstan in the field of human rights:

  • exertion of torture by failing to provide the defendant with medical assistance which posed a risk to Dzhakishev’s life;
  • deprivation of the right to a defence and to a fair public trial;
  • violation of the pre-trial detention rules.

Dzhakishev’s security guard, Talgat Kystaubaev, was also subjected to persecution by the Kazakh authorities. The case is analogous with the case of the Ablyazov’s bodyguard, Alexander Pavlov whose extradition has been requested by Kazakh authorities in order to obtain an incriminatory testimony against the opposition politician. The example of Talgat Kystaubayev confirms that torture and unfair trials are methods of obtaining testimonies against political opponents in Kazakhstan. According to available information, in the summer of 2013, Talgat Kystaubaev was released.

For the last 5 years, Mukhtar Dzhakishev has been kept in detention facilities and prisons. Human rights activists fear for his fate, given the disturbing information regarding his health condition and the substantial timeremaining until the end of his prison term. According to the doctor and human rights activist Bakhyt Tumenova, Mukhtar Dzhakishev needs constant medical supervision, medication, good quality sleep and a tailored approach to managing physical stress.

The Open Dialog Foundation hereby underlines that the conditions of Dzhakishev’s detention in the remote colony of Karaganda Province pose a threat to his life. On 16 April, 2014, Deputy Chairman of the CCES, Zhanat Keshubayev reported that Dzhakishev was "satisfied" with the conditions in the colony. However, due to existing tacit prison rules, Mukhtar Dzakishev cannot openly express his dissatisfaction with the conditions of his detention or report mistreatment. Kazakhstan’s penitentiary system is closed and the administration of the colony can place a prisoner under even more intolerable conditions in retaliation for his criticism.

The Open Dialog Foundation hereby appeals to the competent authorities of the Republic of Kazakhstan with the following demands:

  • To provide Mukhtar Dzhakishev with timely and appropriate medical care, provide him with all conditions of detention as recommended by the doctors, as well as with the possibility of examination by independent qualified doctors of his choosing.
  • In accordance with Article 68 of the Criminal Executive Code of the Republic of Kazakhstan, to immediately transfer the prisoner to a colony in close proximity to his place of residence.
  • To bring to justice the escort service employees guilty of beating Dzhakishev.
  • To provide Mukhtar Dzhakishev with an opportunity to meet freely with his relatives, counsels and human rights activists.
  • To make the written indictment regarding Dzhakishev publicly available and review the criminal case in open proceedings, in accordance with international fair trial standards.
  • Given the critical health condition of Mukhtar Dzhakishev, we hereby urge the President of Kazakhstan to pardon the prisoner at the request of the Commissioner for Human Rights in the Republic of Kazakhstan.

We hereby urge the representatives of the European Parliament, the European Commission, the ODIHR, the diplomatic missions of the EU and the USA in Kazakhstan to monitor the conditions of detention and the observance of Mukhtar Dzhakishev’s rights in the colony; to raise the issue of his case during official visits; to request a meeting with the political prisoner.

On 9 October, 2014, in Brussels, President of the European Commission Jose Manuel Barroso and President of Kazakhstan Nursultan Nazarbayev announced the successful completion of negotiations on a new partnership agreement between the EU and Kazakhstan. We wish to express our regret over the fact that in the statement regarding the outcome of the meeting, José Manuel Barroso did not mention the need to implement the resolutions and recommendations of the European Parliament in order to improve the situation in terms of human rights in Kazakhstan. We call on the EU not to turn a blind eye to the problem of systematic deterioration of the human rights situation in Kazakhstan. Strengthening of the relations between the EU and Kazakhstan must not be allowed to continue regardless of the progress in political reforms and the implementation of Kazakhstan's international human rights obligations.

All those willing to support our appeals are welcome to send their letters to the following persons and institutions:

  • President of Kazakhstan, Nursultan Nazarbayev - the Presidential Administration, the ‘Akorda’ building, Left Bank, Astana, 010000, Kazakhstan, fax +7 7172 72 05 16;
  • Commissioner for Human Rightsin the Republic ofKazakhstan,AskarShakirov-010000, Astana, Left Bank, House of Ministries,entrance No. 15; e-mail: ombudsman-kz@mail.ru;fax: +7 (7172) 740548;
  • Chairman of  the  Committee of  Criminal and  Executive  System of Kazakhstan’s Ministry of Internal Affairs, Baurzhan Berdalin - 010000, Astana, 2 B. Maylina Street, tel.  +7 7172 72-30-26, +7 7172 72-30-37.  A blank for appeals: http://kuis.kz/kz/otinishter;
  • The state institution AK 159/6 ‘The penal colony’ - Karaganda Province, Dolinka, 92 Sadovaya Street, tel. +7 7215 658208;
  • Minister of Internal Affairs, Kalmukhanbet Kasymov - 010000, Astana, 1 Tauelsizdik Prospekt. Tel. +7 7172 72 24 93, +7 7172 71-51-89, e-mail: : oraz-n@mvd.kz;
  • General Prosecutor of the Republic of Kazakhstan, Askhat Daulbayev, - 010000, Astana, House of Ministries, entrance No.2, 8 Orynborg Street, tel: +7 7172 71-26-20, +7 7172 71-28-68;
  • Minister of Foreign Affairs of the Republic of Kazakhstan, Erlan Idrisov, - 010000, Astana, Left Bank, 31 Kunayeva Street. Tel: +7 7172 72-05-18, +7 7172 72-05-16, e-mail: midrk@mfa.kz;

For more detailed information, please contact:
Igor Savchenko -
igor.savchenko@odfoundation.eu
Zhanar Kassymbekovazhanar.kassymbekova@odfoundation.eu
Open Dialog Foundation